CEO 78-59 -- September 8, 1978

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

WATER MANAGEMENT DISTRICT BOARD MEMBER DOING WORK FOR CLIENTS WHO SEEK CONSUMPTIVE USE PERMIT FROM WATER MANAGEMENT DISTRICT

To: Willard R. Bowsky, Surveyors Associates, Inc., Inverness

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1977, prohibits a public officer from having a contractual relationship with a business entity or an agency which is subject to the regulation of his public agency. It therefore would appear that a member of a water management district board would be prohibited from having as private clients any persons, business entities, or governmental agencies within the district, as they all are regulated to some degree, directly or indirectly, by the district board. It does not appear to have been the intent of the Legislature to create such a broad prohibition, however. See ss. 112.311(5) and, particularly, 112.316, which provides that the Code of Ethics is not intended to be construed so as to prohibit a public officer from holding private interests which do not interfere with the full and faithful discharge of his public duties. The subject district board member advises that his occupation is that of a surveyor and that he has been selected by a county to serve as its county surveyor on a consulting basis under the Consultants' Competitive Negotiation Act. He also advises that only a small percentage of his surveying firm's work is done for the county, none of which relates to matters regulated by the water management district board. Only two or three times yearly does he perform private work which is in any way water-related, he has never appeared on behalf of a private client before the district board, nor do any of his private clients frequently appear before the board. Under these circumstances, his work for such private clients is not deemed to interfere with the full and faithful discharge of his public duties and therefore is not prohibited by the Code of Ethics. However, pursuant to s. 112.3143, F. S. 1977, a voting conflict of interest requiring disclosure would be created were he to vote on any measure coming before the district board which inures to his special private gain or to that of any principal by whom he is retained.

QUESTIONS:

1. Would a prohibited conflict of interest be created were a water management district board member who is a registered surveyor privately to perform surveying work for clients whose use of water is subject to the regulation of the water management district?

2. Would a voting conflict of interest be created were a water management district board member to vote on a matter, such as a consumptive use permit, involving a client of his surveying firm?

Question 1 is answered in the negative.

In your letter of inquiry you advise that you are a potential appointee to the Governing Board of the Southwest Florida Water Management District and that you are a registered land surveyor in private practice in Citrus County. You question whether, if you are appointed to the district board, you would have a conflict of interest were a present or former surveying client of yours to appear before the board seeking, for example, a consumptive use permit.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1977.]

The first part of this provision prohibits a public officer from having a contractual relationship with a business entity or an agency which is subject to the regulation of his agency. If you are appointed to the water management district board, that entity will constitute your "agency." Section 112.312(2), F. S. 1977.

At the outset, we note that this provision would not apply to former clients, those persons or businesses for whom you performed surveying work prior to your appointment to the board. The provision would address only those instances involving clients of yours at the time you are serving on the board.

Under Ch. 373, F. S., water management district boards are granted broad regulatory authority in matters concerning the use of water within their districts, including the permitting of consumptive use of water. Thus, every person, business, or governmental agency in a water management district which uses water is regulated to some degree, directly or indirectly, by the district board. As a result, under s. 112.313(7), above, you would be prohibited from having as a client any of these persons, businesses, or governmental agencies.

However, it does not appear to have been the intent of the Legislature to create such a broad prohibition. See s. 112.311(5), F. S. 1977. In construing the Code of Ethics we must also consider another provision, which states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1977.]

The above-quoted provision makes it clear that the Code of Ethics is not intended to be construed so as to prohibit a public employee from holding private interests which do not interfere with the full and faithful discharge of his duties; in effect, this section imposes a "rule of reason" upon the application of the Code of Ethics to any particular set of circumstances.

You advise that you have been selected as county surveyor for Citrus County on a consulting basis under the Consultants' Competitive Negotiation Act, s. 287.055, F. S. 1977. In a telephone conversation with our staff, you advise that only a small percentage of your firm's work is done for the county, and that the only work which has been done for the county that might be termed water-related was done prior to your purchase of the firm and consisted of surveying for canals. With regard to private clients, you advise that perhaps two or three times in as many years your firm might do some surveying which could be termed water-related, but that as a surveyor you have had no occasions to represent any client before the water management board. In addition, you advise that to the best of your knowledge none of your clients frequently appears before the water management board.

Under the circumstances you have outlined, it is apparent that your doing surveying work for clients who may appear before the water management district board would not interfere with the full and faithful discharge of your public duties as a member of that board. The work done for your clients consists of surveying and is not directly concerned with or related to the use of water, the type of regulation which is exercised by the board. This, of course, eliminates the possibility of your representing a client before the board. Secondly, it appears that you have no major, continuing client that is continually and actively being regulated by the water management board. See CEO's 78-12 and 78-27.

Accordingly, we find that the Code of Ethics for Public Officers and Employees would not prohibit you from doing surveying work for a client who may appear before the Southwest Florida Water Management District Board, if you are appointed as a member of that board.

Question 2 is answered in the affirmative.

Section 112.3143, F. S. 1977, provides:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within fifteen days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

Under this provision, a water management board member should examine each measure coming before the board to determine whether he has personal, private, or professional interest in the measure and whether it would inure to his special private gain or to the special gain of any principal by whom he is retained at the time of the vote. If it does, then he may vote, but he must file a memorandum of voting conflict.

As explained above in our response to your first question, the conflict of interest inherent in your performing surveying work for a client who appears before the water management board on a water-use question is not so great as to present you with the alternatives of either stepping down from the board or terminating your private relationship with that client. However, we are of the opinion that the conflict of interest involved in such a situation is sufficient to trigger the application of s. 112.3143, above. Accordingly, if, as a member of the water management district board, you were to vote upon a matter affecting a client of your private surveying firm, you would be required to file a memorandum of voting conflict with the person responsible for recording the minutes of the meeting.

In addition, we wish to call your attention to s. 286.012, F. S. 1977, which provides that a public officer may abstain from voting when he has or appears to have a possible conflict of interest. See CEO's 77-119 and 77-123. Under the terms of s. 286.012, if a client of yours were to appear before the district board, you would be entitled to abstain from voting.